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Email from Oshawa councillor’s private account ordered released

In a decision that could have repercussions across the province, the City of Oshawa has been ordered by Ontario’s information watchdog to release an email sent by a councillor using her personal account.

Like the Hillary Clinton controversy south of the border, the Oshawa case involves Councillor Nancy Diamond’s use of a personal email account to conduct government business. The ruling last week by the Information and Privacy Commissioner forced the release of the email sent by Diamond in 2013 involving a $5.9-million land deal.

Oshawa has been ordered to release emails written by Councillor Nancy Diamond on a private account, in a case that could be precedent-setting. (Metroland)

Ontario’s Information and Privacy Commissioner said it might be a precedent-setting case. “It’s not a matter of what email was used or what device was used. If the matter relates to city business, it’s subject to the act,” Brian Beamish said in an interview, referring to Ontario legislation that establishes rules for accessing government and public sector information.

“I think this will help clarify for everybody that you’re not avoiding access-to-information legislation simply because you use your own device or your own private email account.”

It took a year and a half for Oshawa resident Rob Vella to get a copy of the email, which he provided to the Star, after he filed his original access-to-information request in August 2014. Diamond had argued to the commissioner that because she did not use the city’s server to send the email and since it was sent from her personal iPad, not the city’s computer, it was not subject to disclosure under access-to-information laws.

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According to the decision, Diamond and the city also stated to the commissioner that the email did not deal with a “city matter.”

In the decision, citing a previous case, the adjudicator stated any “records that arise out of the councillor’s official responsibilities as a member of council or some aspect of council’s mandate” are subject to access laws.

“It was clearly the business of the institution and subject to the act,” Beamish said Wednesday, referring to the email.

The email was sent to lawyer George Rust-D’Eye, who had previously done work for the city when Diamond was Oshawa’s mayor. It was sent hours before a council meeting on May 21, 2013.

In the email, Diamond included a draft of a council resolution that would eventually pass later that day in a 5-4 vote. The draft resolution stated that he was being recommended to investigate allegations around a land deal that had been highlighted in a scathing report by Oshawa’s auditor general at the time, Ron Foster. The resolution proposed the terms and scope for Rust-D’Eye’s investigation.

Diamond stated in the email to Rust-D’Eye: “Attached is what I anticipate is the final resolution. If you see any problems, you would have up until about 5 p.m. to let me know.” It goes on to say, “You have, of course, noted how I am negotiating for a full-time fee.”

Diamond was asked by the Star why she used her personal email account and whether she commonly conducts city business using it.

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“I was working in a room with no computer. I love technology and use my BlackBerry, office computer, iPad, netbook — basically whatever I need for wherever I am working,” she said in an email Wednesday.

In the ruling, the adjudicator wrote that “the councillor’s email played a crucial role in the negotiations resulting in the hiring of the investigator.”

“The fact that she used her own email account really is irrelevant . . . you’re just not avoiding the act or your own responsibility by using your own email account,” Beamish said in an interview.

Diamond told the Star she challenged the release of the email because “councillors are not ‘employees or officers’ of the corporation . . . It is the principle that is of paramount importance, not the particular contents of the email.”

Rust-D’Eye’s investigation eventually quashed all of the auditor general’s allegations of misconduct in the $5.9-million real estate transaction, which Diamond supported in an 8-2 vote.

Beamish says there is a need for greater education so elected officials, government staff and public employees understand their obligation to make relevant information available to the public.

“If it’s public business, the basic principle is it should be accessible or potentially accessible to the public through the freedom of information process.”

He said the controversy surrounding use of a private email account by Hillary Clinton, the former U.S. secretary of state now vying for the presidency, is an example of problems that can arise when a non-government server is used by a politician or staffer to communicate official business.

“The difficulty is being confident that you’re getting all the records, because she has control of the server,” Beamish said, referring to Clinton’s situation. “It’s clearly a much better system where it is the government organization that is controlling the server, controlling the emails. They can be confident that they are getting whatever relevant records that there are.

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